Volume 34, Number 8 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
August 2010

Media push for access to Gulf oil spill sites

NEW ORLEANS Access to the
Gulf oil spill has been limited by the
government and BP, according to a report
by The Associated Press.
CBS news reported one of its teams
was threatened with arrest by the Coast
Guard and turned away from a beach.
The Coast Guard said the denial was
under "BP's rules," according to the CBS
report. The Coast Guard, however, said
BP was not controlling access and denied
threatening anyone with arrest.
A photographer for The Times-

Picayune, Ted Jackson, said that access
"is slowly being strangled off," according
to the AP. Jackson said his requests to fly
below 3,000 feet had been denied and he
had been denied access to oily beaches.

NEWSGATHEI
"The oil spill from there is just a rumor,"
Jackson said.
Charter pilot Lyle Panepinto said his
request to fly in restricted airspace was
denied after he told a BP contractor that

Jackson was his passenger. The contractor
worked in a command center also staffed
by the Coast Guard and the Federal
Aviation Administration; he said the rules
were set by the FAA and did not allow
flights that weren't
IN G part of the response to
the spill.
Coast Guard Admiral and spill
coordinator Thad Allen said that media
should only be prohibited from an area for
security or safety reasons.
Source: The Associated Press

Commission accused of breaking Sunshine Law

WAUCHULA The entire Wauchula
City Commission is facing criminal
charges for allegedly violating the
Sunshine Law, according to The Ledger
(Lakeland).
The charges stem from private
meetings in September 2009
and March 2010. A C
A citizen complaint
prompted an investigation by MEI
State Attorney Jerry Hill's
office, and audio recordings of the
meetings were given to investigators.
The September meeting focused on

problems with the city manager. Mayor
David Royal later stated that the meeting
was private because he "didn't want a
big headline story about" issues with the
city manager, according to The Ledger
The March meeting began as a
public meeting, with the
C E SS city attorney warning
commissioners about
ETINGS compliance with the Open
Meetings Law. But 22
seconds later, Royal asked everyone to
leave the room except commissioners
and the city attorney.

An audio recording of the closed
meeting revealed five items were
discussed, none of them falling into a
Sunshine Law exemption.
In addition to Royal, commissioners
Clarence Bolin, Jerry Conerly, Daniel
Graham, Delois Johnson, Valentine
Patarini and Yeavone Spieth are charged
with two counts of violating the Open
Meetings Law.
Each second-degree misdemeanor
carries a punishment of up to 60 days in
jail and six months probation.
Source: The Ledger

Florida Supreme Court rules company can sue

out-of-state blogger for alleged defamatory posts

TALLAHASSEE The Florida
Supreme Court has ruled that non-
residents can be sued for defamation if the
information is accessible in Florida.
Blogger Tabatha Marshall, of
Washington state, was sued by the
employment firm Internet Solutions
Corp. for defamation in a Florida federal
court. The company claims its principal
place of business as Orlando, though it is
incorporated in Nevada.
Internet Solutions alleged that postings
on Marshall's consumer complaint

website accused it of "i
personal information o
The federal trial cou
Internet Solutions' suit
jurisdiction over
Marshall.
The company

fishing" for material was accessible and accessed in
line. Florida, the suit could proceed. The Court
rt dismissed has previously ruled that phone calls and
for lack of e-mails are "electronic communications
into Florida"
DEFAM TION but this is the
DEFAM TI N first decision to

appealed, and the U.S.
Court of Appeals for the 11th Circuit asked
the Florida Supreme Court to determine
whether the postings constituted
"electronic communication into Florida."
The Court held that because the

include website
postings.
The case will return to the 11th
Circuit for consideration of Marshall's
constitutional arguments.
Source: The Miami Herald

ACCESS RECORDS

Witness in Adam Walsh case wants missing report
HOLLYWOOD A witness in the confessed to killing the 6-year-old boy killer Jeffrey Dahmer at Sears the day
1981 murder of Adam Walsh has filed after kidnapping him from a Sears store in Walsh went missing.
a lawsuit in Broward Circuit Court Hollywood, Fla. Toole was named as the Matthews said he destroyed all but
seeking copies of a key investigative murderer, but he recanted multiple times one copy of the report, which he gave to
report. and was never prosecuted. a co-author, who then took it to Cuba,
Retired police officer Joe Matthews Neither the Broward State Attorney's according to The AssociatedPress. The
conducted an independent investigation Office nor the Hollywood Police defendants in the public records suit
of the case. Matthews' report was cited Department kept records of Matthews' are Matthews, Hollywood Police Chief
by police and prosecutors as key to investigation, according to the suit filed Chadwick Wagner and Broward State
closing the case in December 2008. by Willis Morgan. Attorney Michael Satz.
Ottis Toole, now deceased, had Morgan told police that he saw serial Source: The Associated Press

La. governor vetoes bill to open records of oil spill

NEW ORLEANS Louisiana Gov.
Bobby Jindal has vetoed legislation that
would have required his office to keep
open and preserve its records related to the
Gulf oil spill.
The Deepwater Horizon rig exploded
April 20, killing 11 and causing an oil spill
in the Gulf of Mexico. BP, who leased the
rig, has yet to stop the leak.
The bill calling for access to the

governor's documents related to the
spill was passed overwhelmingly by the
Louisiana House and Senate, according to
The Miami Herald.
Jindal's veto letter cited concerns for
the implications of the open records in any
future litigation against BP
"The governor has opposed transparency
for the three years he's been in office, so
that's not a surprise," said Sen. Robert

Adley (R-Benton), a sponsor of the bill.
Jindal has pressed BP to open its claims
database to the state, a move Adley called
hypocritical, according to The Herald.
The governor's chief attorney opposed
several other public records measures in
the recent legislative session, citing fear
of suppressing free exchange of ideas in
Jindal's office.
Source: The Miami Herald

High Court addresses texts, petitions and publicity

WASHINGTON The U.S. Supreme
Court recently issued three opinions
related to freedom of information, the First
Amendment and pre-trial publicity.
In City of Ontario v. Quon, the Court
held that a SWAT team officer's privacy
was not violated when his employer
conducted an audit of his city-issued
pager as long as the city had "a legitimate
work-related purpose" for the review. Sgt.
Jeff Quon used his pager to send sexually
explicit messages and argued that there
was an informal policy allowing personal
use of the pagers.

In Doe v. Reed, the Court held that
petition signatures gathered to put a
referendum on a state ballot were subject
to public disclosure. Protect Marriage
Washington gathered the signatures in a
bid to repeal a domestic partnership law
in Washington state. When the signatures
were requested under the state public
records law, Protect Marriage Washington
sued to block their release, citing concerns
about "threats, harassment and reprisal."
The Court rejected the broad challenge,
citing the potential for disclosure to
safeguard the voting process.

In Killing v. United States, the
Court held that pretrial publicity did not
make the trial of former Enron Chief
Executive Jeffrey Skilling unfair. Killing
challenged his conviction on other
grounds as well, but the Court ruled that
the heavy pretrial publicity surrounding
his trial did not create a presumption of
juror bias. Justices Sotomayor, Stevens
and Breyer dissented, questioning the
fairness of Skilling's trial.
Source: The New York Times,
Reporters Committee for Freedom of the
Press

FIRST AMENDMENT

Prosecutor sues to get job back after political talks

JACKSONVILLE A former
assistant state attorney has filed suit in
a Jacksonville federal court, alleging
that she was fired for speaking about her
views on the U.S. Constitution at political
events.
KrisAnne Hall was dismissed from her
position overseeing felony prosecutions in
Hamilton County after being warned not
to speak to any "fringe" political groups,
according to the Tallahassee Democrat.
Hall spoke at a Suwannee County

Republican Executive Committee
meeting, Tea Party rallies, a 9/12 Project
meeting and a talk radio program. Hall's
talks often centered on her views of the
original intent of the Constitution.
Hall seeks to be reinstated in herjob,
lost wages, attorney fees and damages.
The suit alleges that Hall's boss, State
Attorney Robert "Skip" Jarvis, himself
spoke at Democratic Party functions as an
assistant state attorney.
Jarvis has maintained that his speeches

were nonpartisan and that it was not
the content of Hall's speeches but her
inability to shed the authority of the State
Attorney's Office that raised concerns,
according to Florida Today.
Republicans Lt. Gov. Jeff Kottkamp
and Attorney General Bill McCollum
both publicly urged Jarvis to rehire Hall,
and protesters gathered at the Suwannee
County courthouse to support Hall.
Source: Tallahassee Democrat, Florida
Today

2 The Brechner Report August 2010

J J

ACCESS RECORDS CONTINUED

Media seeks

legal fees in

NCAA case
TALLAHASSEE The legal
issue of whether documents
provided by the National Collegiate
Athletic Association (NCAA) to
Florida State University (FSU) are
public has been settled in favor
of the media outlets who sued for
access, but a dispute still exists over
attorney's fees.
Two dozen media outlets sued
for access to the records last
summer, with collective attorney's
fees nearing $300,000, according to
Florida Today.
NCAA contends that it is not
responsible for the attorney's fees
because it resisted the records
request based on a good faith belief
that it was not subject to the Public
Records Law.
FSU contends it pushed for the
release of the records all along and
therefore is not liable. Florida law
allows successful plaintiffs in open
government suits to recover legal
costs.
Mediation is scheduled in
the case, with a hearing set for
September if mediation is not
successful.
Source: Florida Today

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Brechner Endowment

Stuart attorney seeks access to

business development board

STUART An attorney has filed suit
against the Business Development Board
of Martin County seeking to open its
records and meetings to the public.
Virginia Sherlock wants the Board,
which receives $625,000 per year from
Martin County, to comply with Florida's
Open Meetings and Public Records Laws.
The Board, however, contends it is not
subject to open government laws. "Based
on two independent attorney opinions and
historical consideration of private, non-

governmental economic development
organizations by the Attorney General,
we believe we are not subject to
the Sunshine Law," a recent Board
newsletter states.
Sherlock claims that in addition to
receiving substantial funding from the
county, the Board is subject to open
government laws because it is the
county's official economic development
organization.
Source: TCPalm.com

VENICE The Venice Taxpayers
League has reached a settlement in its
open meetings lawsuit against the Sarasota
County School Board.
The group alleged that the school
board's Financial Advisory Committee
violated the Sunshine Law.
As part of the settlement, the school
board will review its advisory committees
to determine if they are subject to the
Open Meetings Law, establish public
e-mail accounts for advisory board

SEBRING A circuit judge has
denied Preston Colby's bid to inspect
the handwritten notes of the Highlands
County administrator.
Judge Neil Roddenbery ruled that
Colby "has failed to prove any of the
elements required for an injunction,"
according to Highlands Today.

members and provide annual open
government training.
VTL has agreed to withdraw its public
records requests and drop the lawsuit.
The school board will pay $26,500 in
attorney's fees to VTL.
VTL's attorney, Andrea Mogensen,
also represented citizens in a Sunshine
suit against the Venice City Council that
resulted in an attorney's fee award of
more than $750,000.
Source: Venice Gondolier Sun

New Smyrna Beach agrees to pay

fees in cell phone
NEW SMYRNA BEACH The city of
New Smyrna Beach has agreed to settle
a public records lawsuit over cell phone
records.
Bill of Rights, Inc., which runs the
online publication NSB 1,/. /. ', sued
after the city charged it more than $300 to
redact records from a city-issued phone.

record dispute
A circuit judge ruled in favor of Bill of
Rights.
The city has agreed to pay $20,000
in attorney's fees to settle the suit, will
provide the unredacted cell phone bills of
the police commander and will review its
public records policies.
Source: Hometown News

Colby had requested records in a
zoning action as well the handwritten
notes made by County Administrator
Michael Wright at a meeting in Bartow.
Wright said he was not surprised by the
judge's ruling given the Florida Attorney
General's Office stance on the issue.
Source: Highlands Today

As the Freedom of Information Act Coordinator for
the National Security Archive, I oversee the thousands
of FOIA requests our organization submits. My
favorite part of the job is tearing open packages from
the agencies and delving into the freshly declassified
documents. Notwithstanding the fascinating documents
we regularly receive, often the responses from the
agencies are disappointing. Not long ago, the National
Security Agency responded to a FOIA request with
a printout of a Wikipedia article. More recently, the
Central Intelligence Agency redacted a document
which it had earlier allowed to be quoted in full in a bestselling
history book. Despite President Obama's clear embrace of open
government and FOIA from the first day of his presidency -
emphasized in the memos he and Attorney General Holder sent

The
Back Page
By Nate Jones

to executive agencies ordering
them to adopt improved
transparency measures- we at
the Archive have yet to see the
government's full embrace of

this "presumption of disclosure."
The cliche goes that Obama's attempt to change executive
policy is akin to recharting the course of a supertanker. But in
regard to FOIA policy, the Archive's director, Thomas Blanton,
suggests that commanding a "fleet of 90 ships" is a more apt
metaphor-one ship for each of the approximately 90 federal
agencies. The Archive's recent FOIA audit shows that despite a
clear signal from the top, many of these agencies have failed to
improve their FOIA policies. Only 13 of 90 agencies responded
to our FOIA request by providing documents showing concrete
changes in practice as a result of the Obama and Holder memos.
A whopping 35 agencies claimed that they had no documents
which illustrated a change in policy.
But there are strong signs that the Obama administration is
serious about continuing to compel its "fleet" to improve the
FOIA process. The day after the Archive published its audit,
Chief of Staff Rahm Emanuel and White House Counsel Bob
Bauer sent a memo to each agency head lauding their early
efforts to improve transparency, but sternly reminding them that
"more work remains to be done." Perhaps this rejoinder came as

a result of the audit's finding that the oldest outstanding
FOIA request was more than 18 years old and that 30
agencies have FOIA backlogs that are getting worse
rather than better.
Despite these troubling findings, access to
information under Obama's watch is beginning to
improve. The president ordered the creation of a
National Declassification Center to begin clearing the
te Jones 409 million page backlog at the US National Archives.
The annual budget for the National Archives and
Presidential Libraries has been increased. Some agencies, the
Department of State is a notable example, continue to regularly
and effectively release requested documents and reduce their
backlogs. In May, the Senate unanimously passed The Faster
FOIA Act. If the bill becomes law, it will install a panel to study
the FOIA request process and hopefully enact measures to reduce
the years which requestors must often wait.
But in order to truly improve FOIA policy, the federal
employees who actually decide what information should
be withheld from the American people-the "sailors" on the
90 ships, if we keep with the metaphor-must also embrace
openness. A recent Information Security Oversight Office
report to the president highlights the disconnect between those
pronouncing openness and those protecting secrets. The report
states that those holding security clearances "do not challenge
classification decisions as much as should be expected in a robust
system." From my perch, it appears that the Attorney General's
instruction to not withhold information merely "as a technical
matter" and his encouragement to "make discretionary disclosures
of information" are generally not implemented at the sailor level.
The president was correct when he wrote that FOIA is "the
most prominent expression of a profound national commitment
to ensuring an open government." However, for this "profound
national commitment" to be fulfilled, the president must continue
to compel his bureaucratic fleet to embrace FOIA and-most
challengingly-he must instill that all classifiers and declassifiers
"manning the decks" accept the presumption of the public's right
to know.
Nate Jones is FOIA Coordinator at the NSA.